DOCKET NUMBER:  AR20090016531 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his general discharge be upgraded to fully honorable.

2.  The applicant states that he was unprepared to meet the stresses of military duty as prescribed by standards in the Honor Guard at 17 years of age and having come from such a dysfunctional background.  He also contends that he was continually harassed, that he was jumped/attacked on more than one occasion by black members of the Honor Guard for being white, that he was attacked and injured by a member of the Scot's Guard, that he was threatened with death if he did not find a way out of the Honor Guard, and that when he brought these issues to the attention of his command they "blew off" every incident.

3.  The applicant states that he is not looking for benefits because he has them.  He is not looking for a free ride because he has a good career.  He claims that his life has been good, that he has four children, and that he is a proud father.  He just wants recognition for the incredible situation that he found himself in and how scared and distracted he was as a young boy.  He would like his record to reflect the damage caused by outside influences while in the Honor Guard and for the Army to step up and take responsibility for its part during those days.  He points out that he made the choice not to stand up and do the right thing as that young boy.

4.  The applicant provides no documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 12 November 1964.  He enlisted in the Regular Army on 3 February 1982 for a period of 3 years.  He successfully completed one-station unit training in military occupational specialty (MOS) 11B (infantryman) and was transferred to Korea for assignment to the Honor Guard.

3.  Between 14 June 1982 and 29 June 1982, the applicant was counseled on four occasions for various infractions which included tardiness, lack of cooperation, antisocial behavior, failure to properly perform duty, drinking beer while on guard, and fighting.

4.  On 26 June 1982, nonjudicial punishment was imposed against the applicant for three specifications of failing to obey a lawful order.  His punishment consisted of a forfeiture of pay, extra duty, and restriction.

5.  On 20 July 1982, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, for unsuitability due to apathy, defective attitudes, and inability to expend effort constructively.

6.  On 22 July 1982, nonjudicial punishment was imposed against the applicant for three specifications of failing to go at the time prescribed to his place of duty and one specification of failing to obey a lawful order.  His punishment consisted of a forfeiture of pay, extra duty, and restriction.

7.  On 23 July 1982, the applicant underwent a mental status evaluation and was found mentally responsible.

8.  On 2 August 1982, the applicant consulted with counsel.  He acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him and elected to submit a statement on his own behalf.  In summary, he stated that he wanted to stay in the Army, but he wanted to leave the Honor Guard.  He requested transfer to another unit.

9.  The separation authority approved the recommendation for separation and directed the issuance of a general discharge.

10.  Accordingly, the applicant was discharged on 25 August 1982 with a general discharge under the provisions of Army Regulation 635-200, chapter 13, for unsuitability due to apathy, defective attitude, or inability to expend effort constructively.  He had served a total of 6 months and 24 days of creditable service.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness or unsuitability.  Chapter 13, in pertinent part, provided for discharge due to unsuitability because of apathy, defective attitude, and inability to expend effort constructively.  The regulation stated that when separation for unsuitability was warranted, an honorable or general discharge would be issued as warranted by the individual's military record.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  Although the applicant was 17 years old when he enlisted, he successfully completed one-station unit training in MOS 11B.

2.  There is no evidence of record which shows he was a victim of discrimination.

3.  The applicant's brief record of service included two nonjudicial punishments.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

5.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  ____x____  ____x_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________x______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090016531



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090016531



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1